Member Pressured to Change Recommendation in Professional Report

By Tara Hoke

As noted last month, among the educational sessions available to attendees of ASCE's annual conference last fall was a workshop entitled Ethics: The Keystone of Civil Engineering Leadership. This session featured a presentation and discussion of hypothetical cases based on material from the Applied Ethics in Professional Practice program at Texas Tech University's National Institute for Engineering Ethics. This month's column discusses another of the cases considered at the workshop. For more information about the Applied Ethics in Professional Practice program, visit NIEE.

Situation

A design/build team retains a geotechnical engineering firm to perform services on a project involving construction of several two-story office buildings on an undeveloped wooded area. The design/build team consists of the contractor, OutFast Builders, Inc., and a large multidisciplinary architectural/engineering (A/E) design firm. The design/build team has already lined up a number of potential buyers for the facilities, and neither OutFast Builders nor the A/E firm expects to retain any ownership or financial interest in the complex once the project is complete.

Bess, a geotechnical engineer employed by the geotechnical engineering firm, is assigned the task of performing subsurface testing and analysis at the project site and providing site preparation and foundation design recommendations. The soils at the site are moderately compressible, and Bess believes that a shallow foundation will lead to long-term settlement of the structures. While such long-term settlements would not cause the office structures to collapse, they would result in some differential movement in the second stories and cracking of the floor slabs and the brick masonry building exteriors.

Bess presents her findings to her contact at OutFast Builders, Wilcot Connors, and recommends that the structures be supported on deep piles to avoid long-term settlement. Connors, however, argues in favor of the lower-cost option of supporting the structures on shallow spread footings. He refers Bess to the local building code and observes that such footings can be designed to meet the allowable soil bearing pressures provided in the building code. When Bess points out that settlement and cracking will still occur over the long term, Connors notes that the warranty period on the design team's project is only one year and asks what Bess means by "long term." Upon learning that the cracking and settlement will become obvious only over a period of several years, Connors states that the use of deep piles is "overkill" and suggests that Bess revise her report to reflect a recommendation of shallow footing foundations. He hints strongly that Bess and her employer will not be paid for their work if she does not comply with his suggestion.

Question

How should Bess respond to Connors's suggestion? Attendees were asked to consider the following six alternatives:

1. Bess should comply with Connors's request but should note in her report that, while spread footings would comply with the local building code with regard to bearing capacity protection against sudden failure and vertical penetration of foundations and supported columns, the structures would be vulnerable to differential settlement over time, resulting in visible cracking in floors and walls. She should also note that such long-term settlement could be avoided by using deep piles.
2. Bess should schedule a meeting with both the contractor and the A/E firm to discuss her report. She might learn that Connors is not the prime decision maker or that his decisions could be influenced by the opinions of the other team members. At the meeting, she should take care to convey her ethical obligation to base her recommendations on her analysis and should state that her final report will recommend piles as the most suitable foundation for the structures.
3. Bess should tell Connors that she has an ethical obligation to report her results truthfully and objectively even if her recommendations involve a more costly foundation system. She should further state that she does not want to be a party to recommending a system she knows would subject the buildings to distress in years to come.
4. Bess should do as Connors requests but should file a memorandum with the local building department noting that, although the spread footing foundations comply with the building code, she anticipates that the buildings will incur long-term settlement and cracking. With her memorandum on record, any prospective buyer that asks to see the city's permit file will be advised of the anticipated longterm effects on the buildings.
5. Bess should comply with Connors's request but should send him a letter documenting her original recommendations and stating that she changed those recommendations only at his insistence.
6. Situations wherein clients look for cheaper solutions even if quality suffers to some extent occur all the time. As this is not an issue involving the safety of the structure, Bess should comply with Connors's request. However, she should advise Connors that her company will maintain a record of her original recommendations in case there is a question about payment for her services. 

Decision

Discussion at the ethics session centered on two canons of ASCE's Code of Ethics. Category (b) in the guidelines to practice for canon 3 states that "engineers shall be objective and truthful in professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony." Participants were almost unanimous in their belief that this canon imposed an ethical obligation on Bess not to alter her report, regardless of Connors's suggestion.

At the same time, canon 4 states in part that "engineers shall act in professional matters for each employer or client as faithful agents or trustees." Session participants recognized that the client in this case was the design/build team, not the structures' eventual owners, and that canon 4 might therefore suggest a course of action different from the injunction in canon 3 to include all pertinent information in professional reports. However, the attendees strongly believed that the contractor was putting its short-term profit interest above the team's longterm best interests. They noted that not only Bess's professional integrity but also the reputation of the design/build team itself was at stake in this decision. Category (e) in the guidelines to practice for canon 4 compels engineers to advise clients "when, as a result of their studies, they believe a project will not be successful." Session participants saw this admonition as imposing an ethical duty on Bess to remind the parties involved of the potential long-term harm that their present activities could allow.

Participants also noted the possibility of litigation if Bess should alter her recommendations to accord with Connors's suggestion. If a court found that the design/build team had deliberately and fraudulently concealed a problem with the buildings or had misrepresented facts relating to the buildings' design, Bess might herself be legally liable as a result of her involvement in the scheme. Finally, participants felt that this scenario had implications for an engineer's role in promoting sustainable development, most notably in connection with an engineer's responsibility to consider the life-cycle costs of engineering activities.

As with the case study reported in last month's column, participants were asked to vote immediately after the case was presented and a second time after the group discussion. The purpose of the second vote was to determine whether the discussion had an influence on the attendees' perception of the correct course of action. In the initial vote, option 2 was a slight favorite, with options 1 and 3 also receiving a significant amount of support. The second vote gave option 2 a clear majority, with well over half the attendees feeling that canons 3 and 4 of the Code of Ethics would best be served if Bess met face-to-face with the design/build decision makers to discuss her recommendations and remind them of the possible consequences of a decision that favored cost savings over quality.)

Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.

© ASCE, ASCE News, January, 2010